Category Archives: The Law

Posts about the law or the legal profession.

Judicial Economy in Spokeo, Inc. v. Robins

In its recent opinion Spokeo, Inc. v. Robins, 578 U.S. ____ [PDF Warning], the eight-member Supreme Court seems to implicitly disregard judicial economy in favor of an attempt at clarity. In Spokeo, the plaintiff, a Mr. Robbins alleged that the website Spokeo violated the Fair Credit Reporting Act, 15 U.S.C. § 1681–1681x, incorrectly listed a bunch of information him, such as his age, marital status, familial status, income, and level of education. Id. at 6.  Spokeo is kind of a search engine for information about individuals, scraping databases and making that information available to businesses, etc. Id. at 5. The Court remanded the case back to the Ninth Circuit Court of Appeals on the issue of whether Mr. Robins’s alleged injury satisfied the concreteness requirement of the Constitutional test for standing under Article III. Id. at 13. Justice Alito, writing for the majority, reasoned that the Ninth Circuit failed to analyze Mr. Robins’s claim under the concreteness requirement, id. at 4, even though Mr. Robins alleged that this misinformation made it difficult to get a job, id. at 22 (Ginsburg dissenting).

Judicial economy is the efficiency of operation in the judicial system. Black’s Law Dictionary, 923 (9th ed. 2009). In this case, Mr. Robins will have to resubmit his pleadings to the Ninth Circuit so that it can correct it’s legal analysis to include the concreteness requirement. As Justice Ginsburg points out in her dissent, id. at 22 (Ginsburg dissenting), Mr. Robins pleaded facts that support an injury well beyond the “bare procedural” violation that Justice Alito is concerned about in the majority, id. at 11. This process will cost the Ninth Circuit, Mr. Robins, and Spokeo, an amount that is likely measured in the hundreds of thousands of dollars. And for what, simply because the drafting law clerk conflated two elements of an analysis?

Why does the Court not merely apply the correct concreteness analysis and affirm the Ninth Circuits on the underlying facts, but not the legal analysis? I know I’ve seen such an affirmation on facts but not on law, but I cannot think of anything offhand. Could someone cite to something in the comments?

Personally, I believe that this the Spokeo decision is a reaction to the perceived ineffectiveness of the current eight-member court. The decision, and especially Justice Thomas’s concurrence, is one of most theoretical decisions I’ve ever read. It seems that the court found a way to make a very legal distinction in the evolving area of Article III standing, and just kind of said this one will be relevant, even though it had all the facts it need to decide the case and make a clear(er) holding.

If you have a different take on the why of Spokeo, please leave a comment!

Is it illegal in Virginia to kick a duck family out of your pool? Depends on what “molest” means.

 

It looks like a pair of ducks have moved into the pool at my condominium. I’ve seen them there consistently in the afternoon and at night for the past week. At first, I was concerned that the chlorinated pool water might be bad for ducks, so I did some googling. I came across this website from the Dallas/Fort Worth Wildlife Coalition that says that it is against “state and federal law” to “disturb relocate or destroy nests or eggs [sic]” of native birds. The DFW Wildlife Coalition warns that the ducks are in the pool not just to lay out, but to make a nest. Therefore, the DFW Wildlife Coalition concludes, once the ducks have nested, you shouldn’t use your pool until the new duck family leaves. Does the same hold true for Virginia?

A male and female mallard ducks sit by an outdoor swimming pool with their heads tucked underneath their wings.The aforementioned uninvited, but not unwelcome, ducks.

Section 29.1-521(A)(2) makes it unlawful to “destroy or molest” the nest, eggs, or young of any wild bird without a permit, unless the wild birds are “nuisance species.”  Nuisance species, defined in section 29.1-100, do not include game animals such as ducks.  So it looks like it is a crime to destroy or molest the nest that duck family made in your pool. I don’t think anyone is planning to smash up the nest or eggs—or execute a bunch of ducklings—to get their pool back. Could we just throw the eggs or ducklings in a box and take them to a local pond? That turns on what molest means in the context of section 29.1-521(A)(2) of the Code of Virginia.

After a quick search, it doesn’t look like the Code defines molest. Black’s Law isn’t really helpful, defining molestation as “prosecution or harassment” or “unwanted and indecent advances to or on someone”. Black’s Law Dictionary, 1096 (9th ed. 2009). I don’t think the general assembly pictured homeowners prosecuting, harassing, or making indecent advances toward ducklings. The Oxford English Dictionary is more helpful, defining molest as to “annoy or pester . . . in a hostile or injurious way” and “attack or interfere with”. The Concise Oxford Dictionary, 877 (9th ed. 1995).

Presumably, you could move the nest, eggs, or duckling without injuring them. So, it comes down to whether moving the nest, eggs, or ducklings is an act of hostile annoyance or pestering. The OED defines hostile, in part, as “opposed.” Id. at 657. In moving the duck nest, you are definitely acting in opposition to the duck family. But who is to judge whether the eggs or ducklings would be pestered or annoyed? I mean, they are just ducklings—I don’t know if they can feel annoyed. I think adult ducks can express at least something very similar to annoyance, like the alarm quack when a person gets too close.

Ultimately, I would advise a client to call local animal control and ask for advice and help dealing with a duck nest established in a swimming pool. If you do violate Virginia law by removing a duck family from the pool, you can face fines up to $500. Va. Code §§ 18.2-11(c); 29.1-521(C).

Personally, I hope that the condo association has to close the pool for the summer. I am not a pool guy (I burn really easily), and I wouldn’t mind it if there were less people near my back patio this summer. If you’ve ever faced this problem, let me know what your did or what animal control said to do in the comments!

Is hacking a celebrity’s nude photos a “sex offense” in Virginia?

No, hacking a celebrity’s nude photos does not appear to be a sexual offense in Virginia under the current statutory scheme.

In response to this week’s massive disclosure of celebrity nude and revealing photos, Lena Dunham, creator and star of HBO’s Girls, attempted to remind the Twittersphere that the hackers were sex offenders, not mere hackers:

Ms. Dunham’s charge seemed to ring true with a lot of people. Her tweet was mentioned with approval during the first hour of NBC’s Today show as well as in a number of op-ed pieces on the scandal. As a legal analysis, however, Ms. Dunham’s assertion is a lot less tenable.

Hacking into a celebrity’s iCloud account is likely a federal crime, as shown by Christopher Chaney’s ten-year sentence following his guilty plea stemming from his release of nudes from celebrities including Scarlett Johansson and Mila Kunis. Mr. Chaney was charged under the federal wiretapping statute and Computer Fraud and Abuse Act, 18 U.S.C § 1030 (“CFAA”).

The Virginia statutes covering wiretapping and computer crimes, the Virginia Interception of Wire, Electronic or Oral Communications Act, Va. Code §§ 19.2-61 to 19.2-70 and the Virginia Computer Crimes Act, Va. Code §§ 18.2-152.1 to 18.2-152.16, respectively, are very different from the federal statutes. Consequently, an analysis of the facts of Mr. Chaney’s case under Virginia law instead of federal law is too arduous to consider here. Regardless, I think it is safe to  assume that Mr. Chaney could have been prosecuted under the equivalent Virginia statutes.

A sexual offense is a whole different level of transgression, as evinced by the fact that sexual offenders have their name and address listed in a federal website searchable by the public. This website links the individual state sexual offender databases.

In Virginia, sexual offenses are set out in the Sex Offender and Crimes Against Minors Registry Act, Va. Code §§ 9.1-900 to 9.1-922 (the “Registry Act”). The Registry Act establishes Virginia’s sex offender registry and specifies which offenses require registration. Id. §§ 9.1-900 to 9.1-902. Not surprisingly, the Registry Act does not require registration for a violation of the Virginia Computer Crimes Act. See id. § 9.1.-902. Notably, the Registration Act does not require registration for the criminal statute perhaps most on point—section 18.2-386.2, prohibiting the sale of nude images of another with the intent to harass. See id. § 9.1.-902. Nor does the Registration Act require registration for violations of any of the obscenity production or distribution crimes, Va. Code §§ 18.2-372 to 18.2-389, unless the obscenity crime involves minors. See id.

I am not a criminal prosecutor. I suspect that an experienced prosecutor in the Commonwealth Attorney’s office may be able to come up with a charge that fits the facts of the situation, as far as they are known at this time, and qualifies as a sex offense. Barring such creativity, however, it does not appear that the hacking of a celebrity’s nude-photo database qualifies as a sex offense in Virginia.

Disagree? Let me know in the comments!

 

You can rack up charges on PACER, and it’s still free.

Hunting down the decision discussed in this post about Hulu and the federal Video Privacy Protection Act cost me about $2.50 using the federal court’s PACER web service. Every time I use PACER, I get anxious as I see the $0.10/page charges add up with every click. I was looking for an Order, which should be an opinion and therefore available at no cost, but every time I searched for the case or the document it cost me $0.10/page!

I also forget that I probably won’t be paying those charges every time I use PACER. According to § 8 of the Electronic Public Access Fee Schedule [PDF Warning], a user must accumulate more than $15.00 in use charges in a quarter before the user is billed for use of the web service. So, as long as I don’t hunt down more than five or six more decisions before July, I should be in the clear.

Remember that, if used in moderation, PACER is free. Now, I should really review this decision and write a blog post on the revival of the Video Privacy Protection Act, so that $2.50 wasn’t a waste of money . . . . Oh yeah, I probably won’t be paying it!

Won my first case last Friday

On Friday, I made my first in-court argument as an attorney, defending a tenant in an eviction. This was an actual case filed with the court and the judge ruled in my favor after admittedly brief argument with a pro se plaintiff on the other side.

I had a dispositive motion before the court, but as it was a landlord/tenant case, I was prepared to go to trial if the judge rejected the motion. Thanks to the insistence of my girlfriend, I practiced arguing my motion at least ten times the night before. In the landlord/tenant cases before mine on Friday, the judge kept asking if the plaintiffs had provided the notice that was the focus of my motion. So, before I argued my motion, I was confident the judge would respond to my argument. With that confidence, and the repetitive practice, I was pretty relaxed in front of the judge and able to articulate my point succinctly.

Looking back on the experience, I realized two things. First, I don’t clearly remember exactly what I said when I was speaking to the judge. The memory is like a car accident – kind of hazy flashes without a coherent feeling of a narrative. I wonder if this is because of the amount of adrenaline coursing through my veins. Do other litigators feel this way after an argument?

Second, the pro se plaintiff probably had no idea why his claim was rejected. My argument was that the notice was a “condition precedent” to the eviction action. The judge interpreted this as a “jurisdictional” requirement. I think the pro se plaintiff probably thought that I won my argument using magic words, a phrase currently decried in legal academia. I wonder if either the judge or I, as the opposing lawyer, had a duty to make the proceedings more understandable for the pro se plaintiff?

“Won” my first “case” today

I have to apologize for my liberal use of quote marks—but I felt they were necessary to qualify those terms. First, by winning I mean that I received a settlement check in response to a demand letter I sent on behalf of a client, so there was no neutral arbitrator to declare me a winner. Second, the issue never got to litigation, so there wasn’t really a case.

But it sure does feel good. Plus, I was pretty proud of how that demand letter came out. The only difficult part of the whole thing was making sure that the settlement check got to my client within a reasonable amount of time.

Enforcement, Privacy, and Constitutional Problems with Virginia’s New Texting-While-Driving Law

Virginia’s new texting-while-driving law is not only unenforceable, as a recent article in the Washington Post notes, but raises privacy and constitutional concerns as well. The new law retains the existing language in Va. Code Ann § 46.2-1078.1, which prohibits entering multiple letters or text into a cellphone “as a means of communicating with another person” and readings texts or emails transmitted to or stored on your cellphone. This language leaves police officers, while traveling at 65 mph, to determine whether a driver is using his cellphone to send a text or call his wife.

Enforcement problems. As the traffic division commander for the Fairfax police said in the WaPo article, police officers would have a very difficult time determining whether a person was texting or typing the name of a restaurant into Google Maps. Also, drivers could just lie about what they were doing on their phone if they are pulled over, as suggested by a recent blog postNews reports, however, report that police officers will give people the option to present their cellphone to prove that they have not been texting or emailing or to fight the ticket in court. But someone could easily write an app that displays fake text messages with fake timestamps. Ideally, such an app would look just like the native text message/email app and contain copies of the actual texts and email on the phone, but have timestamps that subtracted an hour from the real timestamps.

Privacy concerns. Despite the reassurance that police officers would give a driver the option to submit to a search of the cellphone for evidence of a recent text or refuse the search and fight the ticket in court, Professor Gershowitz of William & Mary explains in a recent article that police officers have constitutional grounds to search cellphones for evidence of texting under all of the different state texting-while-driving laws. Specifically, Professor Gershowitz posits that such searches are permissible under two different exceptions to the Fourth Amendment’s protection against unreasonable search and seizure, the search-incident-to-seizure exception and the automobile exception. The search-incident-to-seizure exception would not apply to the revised Virginia law because the statute does not give a police officer the authority to arrest a suspect. Under the automobile exception, however, Professor Gershowitz says that police officers would have authority to search cellphones in a traffic stop for texting-while-driving even without the authority to arrest. Specifically, the professor reasons that police officers would have authority to search cellphone “containers” in such a traffic stop because the officer personally observed the driver texting. This personal observation give the officer sufficient probable cause for both the traffic stop and the search of the cellphone “container” under existing Fourth Amendment jurisprudence, even if the officer mistook the use of Google Maps for texting or emailing. Therefore, under the automobile exception to the Fourth Amendment, a police officer may legally decide to search a driver’s cellphone even if the driver refuses to consent to the search when the driver is pulled over for allegedly texting-while-driving—even if the driver was just searching for an address on Google Maps.

Constitutional problems. In this article, however, Professor Gershowitz says that, while the automobile exception clearly allows cellphone searches during stops for texting-while-driving, it is not clear where in the cellphone, or what apps on the phone, the police officer may search. That is to say, it is not clear whether the police officer’s authority to search is limited to only an app used primarily for texting or email, or if the officer has the authority to search any app that could possibly be used for communication such as a Facebook app or a web browser. This would be a concern as well for those that submit to the officer’s request to search the cellphone, assuming the officer will only check for texts and emails, and finding out that the officer searched through their web browsing history.

Professor Gershowitz explains that the where authority is likely controlled by the language of the statute. The language of Va. Code Ann § 46.2-1078.1, recall, prohibits in part entering text into a cellphone to communicate with another. Therefore, police officers would certainly be able to review texting and email apps, as those are primarily direct communication apps, but what about your Facebook app? Is a Facebook post a “means of communicating with another person” under the meaning of the statute? Most people do not expect direct replies from their Facebook updates, like you would a direct text, but people certainly intend to communicate to others through a Facebook post. If officers have authority to search beyond email and texting apps, could they have the authority to search your cellphone’s web browser as well? Many people choose to use a web browser over a specialized app for accessing Facebook because of privacy concerns. Additionally, if the police officer has the authority to search for Facebook posts, certainly they have the authority to search for postings to message boards or blogs that were posted through the web browser. What about a Reddit app?

The legislature should revise the texting-while-driving law sooner than later to avoid the cost of enforcement, privacy violations, and constitutional problems of the pending version of Va. Code Ann § 46.2-1078.1. I would support a blanket ban on the use of hand-held cellphones, which was Maryland’s recent solution to the problems discussed above. However, criminalizing the use of hand-held devices likely disproportionately affects those who cannot afford a car with an integrated hands-free device. But I believe that a blanket ban on the use of cellphones in the car would be an overreaction to the problem as well.

Thoughts?